Osman Ramjubhai Dhobhi vs The State Of Gujarat
2023 Latest Caselaw 2896 Guj

     C/SA/38/2023                               CAV ORDER DATED: 12/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/SECOND APPEAL NO. 38 of 2023
                                With
        CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2023
                 In R/SECOND APPEAL NO. 38 of 2023
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OSMAN RAMJUBHAI DHOBHI Versus THE STATE OF GUJARAT ========================================================== Appearance:

MS MEGHA CHITALIYA AGP for the Respondent(s) No. 1,2,3,4,5

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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 12/04/2023

CAV ORDER

1. Present Second Appeal has been preferred by the appellant - original plaintiff the concurrent findings of the learned courts below arising out of the suit for declaration and permanent injunction.

2. Factual matrix of the case is as under: 2.1. That the plaintiff filed the suit against the defendant for declaration and permanent injunction claiming himself to be the president of Muslim Dhobi Jamat. The defendant being government authorities, comprising of State of Gujarat, Secretary, Collect and Bhuj Nagar Palika. As per the case of the plaintiff, he is the owner and in possession of the suit property bearing Revenue Survey No.139 of 2002. As per the case of the plaintiff, the suit property was allotted to Muslim Dhobi Jamat in Savant 1924 by the King of Bhuj and washing clothes is done in the suit property. It is an

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admitted fact that the revenue entry reveals the ownership of the suit property Government. The plaintiff filed various applications claiming his ownership of the suit property before different revenue forums and all the applications were rejected on merits and thereafter, the plaintiff filed the Suit bearing No.1231 of 1997 against the defendant praying for the relief of declaration and permanent injunction.

2.2. Written Statement was filed by the defendants authorities denying the averments made in the plaint and placing on record revenue record stating the name of Government, Nagarpalika to be the owner of the property. The defendants have also challenged the status of the plaintiff as the President of Muslim Dhobi Jamat. The suit property is in the name of Bhuj Nagar Palika and the orders passed by the authorities i.e. revenue authorities are in accordance with law, which was not challenged and so it was prayed to dismiss the suit.

2.3. The learned trial judge framed the Issues and invited parties to prove the pleadings. After hearing the arguments of the parties and considering the documentary evidence, the learned trial judge rejected the suit, which was challenged by way of Regular Civil Appeal No.46 of 2006 in the first appellate court.

2.4. It is pertinent to note that the Regular Civil Appeal No.46 of 2006 came to be disposed of on 13/5/2022. The plaintiff challenged the said order of the appellate court by way of filing Second Appeal No.305 of 2022 before this

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Court and this Court vide order dated 21/9/2022 remanded the matter to the first appellate court to hear the matter afresh in accordance with the provisions of Order 41 Rule 31 of the Code of Civil Procedure (hereafter referred to as "the CPC" for short). Thereafter, the first appellate court on remand, after hearing the parties dismissed the appeal, which is challenged before this Court by way of this Second Appeal.

3. Heard Mr.M.A. Kharadi, learned advocate for the appellant and Mr.B.Y. Mankad, learned advocate for the respondent No.6 - Bhuj Municipality and learned AGP for the respondent Nos.1 to 5 - State.

4. I have examined the findings of both the courts on the issue raised in the suit. Upon examination of the judgement and order of both the courts below, no infirmity, illegality, perversity or impropriety is pointed out in the concurrent findings of the facts rendered by the courts below by Mr.Kharadi, learned advocate. Not only that, the learned advocate for the appellant is unable to show to this court any finding recorded by the learned courts is without any evidence or there is any illegality in the findings.

5. Here, in this case, the plaintiff has filed the suit as President of one association named Muslim Dhobi Jamat, but the entire record of the case, does not have any document to show that the plaintiff was having any right to file the suit even under the provisions of Order 1 Rule 8 of the CPC. As such, the findings of the learned trial court as

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well as the learned first appellate court regarding status of the plaintiff as President of the Muslim Dhobi Jamat cannot be said to be illegal or perverse in view of the documents.

6. The learned advocate for the appellant plaintiff has submitted that the document of the year 1924 which gives ownership to the Dhobi Jamat is not considered by the courts below. However, considering the findings of the trial court and the first appellate court, the said document which according to the plaintiff gives ownership to the Muslim Samag does not give specifically state that it was Muslim Dhobi Jamat, but it was shows Dhobi Jamat. As such the plaintiff is not able to prove that the land was reserved for Muslim Dhobi Jamat. Moreover, as rightly observed by both the courts below the plaintiff has not established that the said document was executed by the King of Bhuj in the year 1924. The trial court as well as the first appellate court has specifically observed that the plaintiff has tried a lot to prove their ownership over the land by filing various litigations before revenue authorities but he has not succeeded and the said orders are not challenged and the same has attained finality. As per the case of the appellant plaintiff, he has challenged the revenue entries claiming to be ownership of the Muslim Jamat by filing the suit in which he has failed and also in the first appellate court he has not succeeded. The concurrent findings recorded by both the courts below regarding ownership of the land in question is cogent and convincing and no infirmity or perversity is found.

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7. So far as the contention raised by the learned advocate for the appellant that mandatory provisions of Order 41 Rule 31 is not complied by the first appellate court is concerned, in the earlier Second Appeal filed by the appellant and the matter was remanded and thereafter, the appellate court after framing the points of determination has given findings on each and every point on appreciating the entire evidence on record. As such, the appellant again wants to agitate the same ground and drag the litigation, which cannot be permitted.

8. Under the circumstances, this court does not find any error or law in the concurrent findings of the learned courts below. In exercise of powers under section 100 of the Code of Civil Procedure, jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised so as to enable this Court to admit the present appeal.

9. The scope of Second Appeal under section 100 is limited. Second Appeal is competent only if it involves, at the stage of admission, substantial question of law. High Court can interfere with the concurrent findings of fact, if the findings are perverse but the perversity should be apparent on the face of record.

10. Here in this appeal, the question of law raised cannot be said to be substantial question of law and there are question of law but not the substantial question of law.

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11. In the case of Easwari Versus Parvathi and others,. reported in (2014) 15 SCC 255, it is held that High Court can entertain a Second Appeal on a substantial question of law and it has absolutely no jurisdiction to entertain the Second Appeal on the ground of erroneous findings of fact, however, gross error seems to be looked into. High Court can interfere in the concurrent findings of facts in the Second Appeal if the appellate court has not properly appreciated the evidence on record.

12. In the case of Samina Khatun, AIR 1995 Gauhati 104, also it is held that High Court can only entertain Second Appeal only on substantial question of law. High Ciourt has absolutely no jurisdiction to entertain Second Appeal on the ground of erroneous findings of fact.

13. As laid down in the case of State of Haryana Versus Khalsa Motors Limited, reported in (1990) 4 SCC 659, on the basis of evidence on record it is held that the trial court and first appellate court has given concurrent findings of facts and the High Court cannot reverse the said findings under ordinary circumstances.

14. In the case of C.Doddanarayana Reddy & Ors. Vs. C. Jayarama Reddy & Ors., reported in (2020) 4 SCC 659, the Hon'ble Apex Court has observed and held as under :-

"25. The question as to whether a substantial question of law arises, has been a subject matter

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of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v.

Anjuman-E-Ismail Madris-Un-Niswan (1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its 8 (1999) 6 SCC 343 jurisdiction under Section 100 of Civil Procedure

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Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

15. And again in Secy., Taliparamba Education Soci- ety v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:

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(SCC p. 486, para 5) "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors.9, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the 9 (1999) 3 SCC 722 court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in

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respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, this Court held as under:

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"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question 10 (2001) 3SCC 179 of law is a substantial one and involved in the case, or not; the paramount overall

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consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was

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a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

29. The learned High Court has not satisfied the tests laid down in the aforesaid judgements. Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two 11 (2019) 8 SCC 637 courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

15. In the recent decision in the Case of Kapil Kumar Vs. Raj Kumar reported in (2022) 10 SCC 281, the Hon'ble Apex Court has observed and held as under :-

"10. At the outset, it is required to be noted that as such there were concurrent findings of facts

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recorded by the learned trial court as well as the learned first appellate court on execution of pronote by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the findings recorded by the courts below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under section 100 CPC.

11. Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law. From the impugned judgement and order passed by the High Court, it appears that as such no specific substantial question of law seems to have been framed by the High Court. However, it appears that what was considered by the High Court was whether the plaintiff proves the execution of pronote and the receipt by leading cogent evidence."

16. This appeal, as stated above, is devoid of any substantial question of law. Both the courts have rightly decided the issue between the parties in the right

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perspective. The trial court and the first appellate court has dealt with the plea of ownership of the disputed land and even locus-standi of the plaintiff is also not proved to file the suit. No cogent and convincing evidence has been brought on record to justify the claim of the plaintiff - appellant. The plaintiff has failed to prove his case before the trial court as well as the appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merits both on facts and law and hence the same is dismissed at admission stage.

On dismissal of the main Second Appeal, the Civil Application No.1 of 2023 stands rejected.

(RAJENDRA M. SAREEN,J) R.H. PARMAR